Dillon v. Nall

MURRAY, Justice

(dissenting).

I cannot concur in the above opinion, as I believe it to be in direct conflict with the very recent opinion of the Supreme Court, speaking through Judge German of Section A of the Commission of Appeals, styled Love v. State Bank & Trust Company of San Antonio, 90 S.W.(2d) 819.

The only possible distinction between these two cases is that in the Love Case a judgment of dismissal was entered upon the permanent minutes of the court, while in the case at bar the judgment of dismissal was not entered in the permanent minutes. It was entered only on the judge’s trial docket and in the rough or temporary minutes kept by the clerk.

The law is well settled that, if a judgment is rendered by the judge in open court, the entry of same upon the minutes is nothing more than a ministerial duty of the clerk which will not affect the validity of such judgment as between parties who have actual knowledge of the rendering of the judgment. In 25 Tex.Jur. p. 428, § 61, we find the following clear statement on the subject, to wit: -

“Effect of Failure to Enter. — Failure to enter a judgment in the minutes, or failure to enter it correctly, does not annul the judgment but merely constitutes an imperfection in the record. Nor is the finality of the judgment thereby affected. Despite such failure the judgment is binding as between the parties, and they are entitled to have entry made according to the facts as they transpired. Nor is it material, on the question whether a judgment has-been rendered, that the court failed to enter any memorandum on his docket as to what its judgment was; such entries are intended merely for the guidance of the clerk in the final prepai-ation of his minutes.

“ ‘It is sufficient to constitute a final judgment that the court pronounces his conclusions as a judgment from the bench, so that all of the parties in interest may know and understand what his judgment is.’ ”

It is my opinion that the evidence shows conclusively that judgment was rendered on March 18, 1935, dismissing this cause, that such judgment was not set aside at the term of court at which it was rendered and that it, therefore, became a final judgment. There is no evidence in the record to the contrary.

It is true that the trial judge, at a hearing on a motion to.enter judgment of dismissal nunc pro tunc, denied such motion and made an alleged finding of fact that the cause had not been dismissed at the March term. Under the evidence in this case, this alleged finding of fact was nothing more than an incorrect conclusion of law. The trial judge seemed to be of the opinion that the cause was not dismissed because the judgment had not been entered in the minutes. It is clear that the judge was of the opinion that a judgment of dismissal had been rendered by Judge Minor. During the hearing the special trial judge asked this question:

“The Court: The day he announced the dismissal?” (Inquiring about the day the judgment of dismissal was presented to Judge Minor.)

This incorrect conclusion of law made with reference to the interlocutory order denying the motion for entry of judgment nunc pro tunc from which appellant could not have appealed does not in any way affect this appeal from a judgment on the merits.

If the evidence conclusively shows that the court had no jurisdiction to try this cause because it had been dismissed at a prior term, the judgment should be reversed and the entire cause here dismissed.

Documentary evidence was introduced showing that .Judge Minor made the entry on his trial docket to the effect that March 18, 1935, this cause was dismissed for want of prosecution. The clerk made a similar-entry in his temporary minutes. The attorney for appellee, after having a conversation with Judge Minor, filed a written motion setting forth the fact that the cause had been dismissed.

Four witnesses testified with reference to this matter. Mr. Sam Garoni, deputy district clerk on duty in the Fifty-Seventh district court, testified that Judge Minor in open court announced that this cause was dismissed for want of prosecution, and this testimony is not contradicted by any witness who testified. Harper McFarland, Esquire, who was present at .the call of the docket on March 18, 1935, testified, but was not asked any question as to whether or not Judge Minor had pronounced a judgment of dismissal in open,court. Clint Brown, Esquire, testified that he did not hear Judge Minor say that he was going to dismiss the cause. This in no way contradicts the testimony of Garoni. Attorney for appellant insisted that Mr. Brown be asked to state what Judge Minor did say, but counsel for appellee declined to ask this question.

H. C. Covington, Esquire, attorney for appellee, was the fourth witness to testify. He was not present at the call of the docket on March 18, 1936, and did not attempt to testify as to what Judge Minor had announced from the bench at the time this cause was reached on the call of the docket. He did admit that after talking with Judge Minor he prepared a motion for reinstatement of the cause in which he alleged that the cause had been dismissed. He presented this motion to Judge Minor, who placed his fiat thereon setting the motion for a hearing. Covington requested the clerk to issue notices to the attorneys for appellant, which was done. He contacted appellant’s attorneys, who were threatening to withdraw from the case, and secured a promise from them that they would co-operate with him until the cause was back on the docket.

I here quote some of Covington’s testimony:

“So, I saw Mr. Bartlett (one of the attorneys for appellant) and he said, ‘Well, I will cooperate with you in getting it back on the docket.’ Naturally, I didn’t think any more about it. I knew it had been dismissed, and if it had been dismissed, I knew the Judge had changed his mind, because he said he had, he said it was going to be reinstated. That is all I know about it.”

The above facts clearly bring this case within the rule announced in Love v. State Bank & Trust Co., supra. The two judgments of dismissal have the unusual similarity that they were rendered by the same judge in the same court.

The majority opinion in discussing the question as to whether or not this cause was actually dismissed at the March, 1935, term points out that:

(1) Counsel for appellee was diligent in his efforts to bring this cause to trial.

(2) His absence on the call of the docket, on December 18, 1935, was clearly and satisfactorily explained.

(3) Appellant and his attorneys were not present at the call of the docket.

(4) Judge Minor was not requested to dismiss the cause.

(5) Judge Minor called his docket on she particular date at an earlier time than was customary in his court.

(6) It was not the intention of Judge Minor to dismiss the cause.

(7) Judge Minor did not sign, but told the clerk to hold the order of dismissal.

(8) Judge Minor was at the time a sick man.

These facts, in my opinion, in no way contradict the docket entries, the other documentary evidence and the undisputed evidence of Sam Garoni showing conclusively that Judge Minor did render a judgment of dismissal in this cause, which was permitted to become final. In fact, the matters above set out in many respects corroborate the fact that Judge Minor did in fact render judgment.

If there had been no judgment rendered dismissing this cause, why did Judge Minor make such an entry on his trial docket? Why did the clerk make such an entry on his rough minutes? Why did counsel for appellee file a motion to reinstate, setting up the fact that the cause had been dismissed? Why did Judge Minor set this motion down for a hearing? Why did the clerk issue notice to appellant’s attorneys citing them to appear and show cause why the cause should not be reinstated on the docket? Why did counsel for appellee seek the co-operation of counsel for appellant in getting the cause back on the docket ? Why did Clint Brown, Esquire, undertake to intercede for counsel for appellee unless he understood that the cause had been dismissed from the docket? It is perfectly plain that at the time and before the present question had arisen, Judge Minor, the clerk, counsel for both appellee and appellant, all understood that judgment of dismissal had been rendered and that reinstatement was necessary.

This cause having been dismissed at the March term, 1935, and that judgment becoming final by adjournment of court, the court was without jurisdiction at a subsequent term to hear and determine this cause on its merits, except upon a bill of review, and it is here admitted that no such bill has been filed.

It is my opinion that the only proper judgment that this court could render is one of dismissal of the cause. I, therefore, respectfully hereby enter my dissent.